concurring and dissenting: The majority opinion is based on the premise that loss of services damages are an element of personal injury damages. I disagree.
K.S.A. 23-205 specifically grants “the right of action to recover damages” for loss of services to the spouse who is injured as a result of the wrongs of a third party. “The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988). The plain language of K.S.A. 23-205 makes it clear the legislature intended to create a cause of action, but it did not create a category of damages that could be collected by an injured person. The damages collected in this cause of action are not to compensate the injured worker but are to compensate the spouse of that person for loss of services normally provided by the injured worker. K.S.A. 23-205.
Thus, McGranhan did not attempt to specify a particular element of personal injury damages in his settlement agreement but attempted to identify a completely separate cause of action and protect it from subrogation. In this regard, McGranahan is not so different from the plaintiff in Houston v. Kansas Highway Patrol, who sought to protect his award for property damages. 238 Kan. at 195.
In Houston, the dissent noted: “The purpose of K.S.A. 44-504 is to insure that the injured worker does not receive a double recovery. The employer should be reimbursed only from that *31portion of a settlement or judgment that would be compensable under the Act. That is the intent of the legislature.” 238 Kan. at 200-01.
When a worker survives a work-related accident, the workers compensation act compensates the injured worker for the injuries. K.S.A. 1989 Supp. 44-510c, 44-510d, and 44-510e. When a worker dies as a result of work-related accident, the workers compensation act compensates the family for the loss. K.S.A. 1989 Supp. 44-501. A worker’s spouse, however, is not compensated under the act for loss of services of the injured worker when the worker survives; therefore, when an injured worker brings an action for loss of services under K.S.A. 1989 Supp. 44-504 and K.S.A. 23-205, the worker is seeking damages not recovered under the act. Since the employer has paid nothing to an injured worker for that worker’s spouse’s loss of services, any recovery as a result of a loss of consortium action should not be subject to subrogation.
There is a flaw in the argument that, because damages recovered for loss of services in a wrongful death action are subject to subrogation, recovery for loss of services generally ought to be subject to subrogation. Loss of services is a separate cause of action, which is brought by the surviving injured worker although the action is designed to compensate another person, and is not covered by the Workers Compensation Act. K.S.A. 23-205; K.S.A. 1989 Supp. 44-501. Since the Act did not compensate McGranahan for loss of services, there is no double payment and subrogation by the employer is not appropriate. Wrongful death is a cause of action for a deceased worker’s family and loss of services is one measure of damage for that action. K.S.A. 1989 Supp. 60-1904. Workers compensation is designed to reimburse a worker’s family for loss of services when a worker dies. K.S.A. 1989 Supp. 44-510b. Thus, since workers compensation does compensate the family for loss of services when the worker dies and the family can recover damages for loss of services in wrongful death, there is a possibility of double payment, and subrogation is appropriate.
The dissenters in Houston used the practical example of a worker injured in his own car to illustrate the potential unfairness of ruling that an employer is entitled to recover all compensation *32the employer had paid under the act “from a judgment or settlement its worker obtained from a third party, including that portion of the judgment or settlement not compensable under the Act.” 238 Kan. at 200. Similar facts can be used to show the problem with ruling loss of services subject to subrogation generally. Quoting from Houston
“What happens under the following circumstances?
“(1) While driving his own automobile on the job, an employee is involved in a two-car accident with a third party who is totally at fault.
“(2) Under the Act, the employer pays $10,000 compensation to its employee. The employer is reimbursable under K.S.A. 44-504(b).” 238 Kan. at 200.
Now modifying and adding to the facts: (3) the employee has an insurance policy which contains a $500 deductible provision. The insurance company pays $3,000 to repair the damages to the employee’s car. (4) Since the worker’s spouse is physically handicapped, the worker had been responsible for cooking all meals for the family and cleaning the house. As a result of the injuries, the worker was unable to perform those duties for six weeks, so the physically handicapped spouse hired domestic help at a cost of $2,000. These damages are recoverable under K.S.A. 23-205. (5) The worker sues for all damages he has suffered and for loss of services. (6) A jury awards a specific verdict awarding the following: (a) $5,000 for personal injuries and loss of wages; (b) $3,000 for damages to the car; and (c) $2,000 for loss of services.
Under the law in Kansas, it is unclear what would happen in this situation. Under the holding in Houston, the employer would probably be entitled to the entire $10,000 award. Under the majority opinion in this case, the result is unclear. Would the employer get $7,000, or would the employer only be entitled to $5,000?
To resolve this issue, we must again review the workers compensation act. “[W]hen a workers’ compensation statute is subject to more than one interpretation, it must be construed in favor of the worker if such construction is compatible with legislative intent.” 238 Kan. at 195. Since the legislature clearly meant to protect against the worker benefiting from a double recovery, I would hold that the employer is only entitled to $5,000 under the facts in the hypothetical situation above.
*33I concur with the majority in affirming the trial court’s determination that the award for medical expenses was subject to subrogation and reversing the trial court’s determination that the award for pain and suffering was not subject to subrogation. I would dissent from the majority and affirm the trial court’s determination that the award for loss of services was not subject to subrogation.